Maginnis, • C. J.
Plaintiffs in error moved below to quash the indictment, which motion was overruled, and exception taken. They then interposed a demurrer to the indictment, which was overruled. These are the first t wo and principal assignments of error.
The first question suggested by the motion and demurrer grows out of a misapprehension as to the scope and effect of section 138 of thé crimes act in the Compiled Laws of 1876. Section 139 of that act, as amended March 5, 1884, is substantially the statute of 7 & 8 Geo. 1Y.; and it seems to be conceded that had section 138 not been enacted, the facts as developed in the court below would have constituted a breach of section 139 of the false pretenses act. It remains, therefore, to inquire what effect section 138 has upon section 139 in withdrawing this or any other case from the provisions of the latter section. Section 138 provides that, “if any person, by false representations in writing of his own responsibility, wealth, or mercantile correspondence or connection, shall obtain a credit, and thereby defraud any person,” etc., “or if any person shall cause or procure others to report falsely of his honesty, wealth, or mercantile character, ” etc., he shall be punished. It is a fundamental principle that a statute which is in effect a limitation upon a general act limits the general act only so far as the words of the limiting statute go. In other words, where there is a general act creating and punishing an offense, which may be committed in a number of Ways, and another statute prescribing a particular punishment for that offense when committed in a particular manner, such offense, unless committed in such particular manner, is subject to punishment under the general act; and it is equally true that a penal statute must be construed strictly. Counsel, we think, when they impute to section 138 the effect of providing, or attempting to provide, for all matters of false pretenses in which the element of credit enters, misapprehend the effect of such statute. If the wording of section 138 was not perfectly clear and intelligible in itself, the history of section 139 would cast sufficient light upon the scope which the legislature intendeditto have. Section 139, as passed and incorporated in the Compiled Laws of 1876, contained the provision: “This section shall not apply to sales of property on credit. ” In 1884 the legislature struck out the clause quoted above, lea ving section 139 to apply to any matter in which credit was an element, and which was not otherwise provided for. Section 138 only provides a punishment for the offense of obtaining goods upon credit by the representation in writing of the party himself as to his responsibility, or by his procuring- others to make such representations for him ; and it will be noticed that the representations are of a particular kind. In the case at bar, it is doubtful whether the representations made were such as is contemplated by section 138. See Lyde v. Barnard, 1 Mees. & W. 101. But, without deciding that question, it seems to ns that upon other grounds the case at bar cannot be construed as within the contemplation of section 1S8.
Plaintiffs in error, for their own benefit, procured a person to perpetrate the fraud, not by any representations as to their responsibility, etc.; nor did they themselves make such representations, in writing or otherwise. Clearly,the offense not being within the letter of the act, they are not punishable under section 138. 2 Bish. Crim. Law, § 415. Faulds did not procure them to make representations, and thereby make them accessoi'ies to any crime of his, (it would not be difficult to imagine a state of facts in which he might have been wholly an innocent instrument;) but they originated the crime. They were the prime movers in it. They were to reap the benefits of it. In the view of this court, they are principals in the false pretenses. 1 Bish. Crim. Law, § 686; Queen [173] v. Moland, 2 Moody, Cr. Cas. 276. And the false pretenses which they made use of to carry out their' fraud were not such as, under any indictment, would warrant a conviction and punishment under section 338. Not being punishable under section 138, we cannot concede for a moment that these acts, which, ever , since the statute of Geo. IV., have been treated and punished as false pretenses, have ceased to be a crime by force of the mere fact that the legislature has provided a different punishment for the crime as committed in a particular manner.
Another objection is urged to the indictment in this case. It is contended on the part of the plaintiffs that the indictment is defective and insufficient in this: that it does not set out a sale, or attempted sale, of the horses to Faulds. Plaintiffs’ objection is supported by a number of citations, the principal of which is Com. v. Strain, 10 Metc. (Mass.) 521. But we think there is a wide difference between Com. v. Strain and the case at bar. In that case, after alleging the pretenses, the indictment failed to make any further allegation connecting the pretenses with the obtaining of the property, the property having been obtained by means of a sale. We think the language of the court in Com. v. Strain was broader than was necessary for the decision of the case, the indictment being unquestionably bad. It is necessary that the indictment should set out all the facts which constitute the offense, and the additional ones which may be required to inform the accused of the charge which is made against them. The facts which constitute this crime are— First, the pretenses; second, their falsity; third, the fact of obtaining the property by reason of the pretenses; fourth, the knowledge on the part of the accused of their falsity; üftb, the intent to defraud. These five facts or set of facts must be alleged and proven in any case of false pretenses; but, in a case'where the pretenses bear no apparent relation to the obtaining of the goods, as in Com. v. Strain, then whatever additional facts are necessary to intelligibly connect these two things as cause and effect must be alleged and proven. Whart. Crim. Law, par. 1215. In the- indictment under consideration, the allegation is made that Faulds, desiring to purchase these horses, made these representations. Such was not the case in Com. v Strain. For the purpose of illustration, suppose that A. goes to B., and makes certain false representations, stating that he wants to buy a suit of clothes. Such representation, being the substance of the conversation which would precede any sale, states all that it is necessary to state about that part of the transaction. It would be ridiculous to require any other part or the whole of the conversation to be set out in the indictment. Thereupon B., after fixing a price upon the suit of clothes, delivers them to A. upon the strength of the representations, and gives him a credit for that amount. In other words, he sells the clothes. But it is immaterial what the price agreed upon is. If the property has any value, the crime is committed, and the amount does not affect it. The only allegation, then, that, according to plaintiffs’ contention, should be added to the indictment is that “B. sold the clothes to A,” — in other words, that A, obtained the clothes from B.; and we have already seen that the mode of obtaining them is immaterial. Com. v. Coe, 115 Mass. 481; Thomas v. People, 34 N. Y. 351. Nor can it be said that the allegation should have been made that the sale was upon credit, for the reason that there are but two forms of purchase and sale, — one for cash, the other on credit. Had the sale been for cash, no crime would have been committed. The allegation in the indictment that A. obtained of B. the clothes, the other allegations indicating a purchase, I think necessarily negatives the idea that the sale was for cash, and it must therefore have been upon credit. The false representations themselves, and the fact by whom they were made, (and these must appear in the indictment,) will plainly designate, as we think they do in the case at bar, the section of the statute under which the particular acts charged are punishable. We think the pretenses and the offer to purchase constitute clearly the inducement which led Walker, not to sell the property, because the sale is not the gist of the offense, but to part with the horses. The sale is only the ultimate fact, — thesumming up of the circumstances surrounding the delivery of the horses by Walker, and the obtaining of them by Faulds. It can make no difference in the offense, or the method of charging it, whether the transfer of the property was surrounded by circumstances which would amount to a sale or a loan, or any of the other forms by which such transfers might be made. Com. y. Coe, [175] 115 Mass. 481; Thomas v. People, 34 N. Y. 351. Such circumstances are merely evidential of the main fact that the accused actually obtained the property. This view is fully sustained in State v. Jordan, 34 La. Ann. 1219, which passes directly upon the point in controversy, and reviews Com. v. Strain. The supreme court of Massachusetts, in Com. v. Hulbert, 12 Metc. 446, has held an indictment, framed in almost exactly the same words as the one at bar, good.
A further objection is made to the indictment od the ground that it should state a delivery of the property to Faulds. We think the allegation that Faulds obtained the horses necessarily conveys aud includes the idea that they were delivered to him; and this view has been adopted in Kennedy v. State, 34 Ohio St. 310, and affirmed in Tarbox v. State, 38 Ohio St. 581.
As to theobjection madethat the indictment is defective because it fails to apprise the accused of what crime they are charged with, we do not think the objection well taken. The distinction between larceny and false pretenses is well settled, and consists in the fact whether or not the owner intended or consented to part with the title to property. But the allegation of the indictment is that, by color and means of the pretenses, plaintiffs obtained the horses, presumably for the purpose which the pretenses and inducements held out would naturally accomplish. The object to be obtained by these means, it is apparent on the face of the indictment, wab not merely the possession of the property, but its title also. They proposed to buy the horses, and thereby obtained them. By no construction could such an indictment be held to charge a larceny. This form of indictment has been held good in numerous cases. See 3 Chit. Crim. Law, 1006; Morris v. State, 25 Ohio St. 217; State v. Penley, 27 Conn. 587; Skiff v. People, 2 Parker, Crim. R. 139; Com. v. Hulbert, 12 Metc. (Mass.) 446; State v. Jordan, 34 La. Ann. 1219.
A largenumborof exceptions were taken at the time to the admission of testimony, but the first and most important one is as follows: The territory offered evidence tending to prove that Faulds bought the horses of Walker, paying him $1,000 in cash, and giving his note for $2,300 for the balance of the purchase money. The admission of this evidence was objected to, on the ground that no sale was alleged in the indictment. We have seen that, in the opinion of the court, no allegation of a sale was necessary in the indictment, and therefore theobjection on this ground was properly overruled. But a more serious objection to the introduction of this evidence, and its effect after its introduction, sugests itself to the court. The indictment charges virtually the obtaining of the property in question by means of the false pretenses alone. The evidence as admitted discloses the fact that Walker did not part with the horses on the strength of the pretenses alone, but that the payment of the $1,000 was one of the inducements. Indeed, Walker says that he would not have sold the horses had he not received the money. The question immediately arises as to whether such proof constitutes a fatal variance from the allegations of the indictment. The principle is well settled that the false pretenses need not be the only inducement, (Wharf. Crim. Law, par. 1176, and cases there cited,) if they are the controlling motive.
In People v. Haynes, 14 Wend. 547, Chancellor Walworth says: “It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner should have been induced to part with the property solely and entirely by pretenses which were false. If the jury are satisfied that the pretenses proved to have been false were a part of the moving causes inducing the owner to part with his property, and-that the defendant would not have obtained the goods had not the false pretenses been superadded to statements which may have been true, and to other circumstances having a partial influence upon the mind of the owner, they will be justified in finding defendant guilty.” See, also, State v. Mills, 17 Me. 211; Com. v. Drew, 19 Pick. 179; People v. Haynes, 11 Wend. 557; People v. Herrick, 13 Wend. 87; Smith v. State, 55 Miss. 513; In re Snyder, 17 Kan. 542.
It may be said, of course, that Walker would not have made the sale had he not been paid the $1,000; but it is equally true that, being paid the $1,000, he would not have sold had he not believed from these representations that Faulds was a man who had the means and would pay for them. We think this would constitute the controlling inducement. It being the controlling inducement, the crime is completely proved when such state of facts appears; and it becomes immaterial whether it was the [177] only inducement or not. The accused are sufficiently informed of what they are charged with, viz., “the obtaining of the horses by the particular false pretenses;” and the fact that other things operated to bring about the sale, different from and contradictory of the allegations in the indictment, is a matter of defense, which, under the ordinary rules of pleading, the prosecutor is not obliged to anticipate. If it had been possible for him to have made a case under the indictment, without eliciting the fact of the payment, then it would have been competent for the defense below to have offered such fact in evidence; and it would have been a proper matter for the determination of the jury as to whether, in view of all the facts, the accused were guilty of obtaining the property charged by means of the false pretenses alleged. If this case had been brought before the jury in this order, we cannot see how the court could treat it as a fatal variance; and we are of the opinion that the principle would not be altered by the fact tnat such evidence was elicited by the prosecution.
It has been urged upon the court that theevidenceadduced below was insufficient to warrant a conviction. We think there was sufficient evidence upon which to base a verdict of guilty.
The third error complained of is that an open venire was issued to the sheriff of the county to serve in impaneling a jury in the trial of the case below. The record disclosing no objection and no exceptions taken to this proceeding below, this •court cannot pass upon that question.
The fourth error assigned is that the •court below erred in permitting the prosecuting witness, Walker, to remain in the court-room, having excluded the other witnesses. The matter of the exclusion •of any and all witnesses from the coui't-room during the progress of the trial is wholly in the discretion of the court, and will not be reviewed, except for gross abuse. No such abuse has been shown here. 1 Bish. Crim. Proc. pars. 1188, 1189.
The twelfth error assigned is that the court below erred in permitting Faulds to testify as to Russell’s declaration of who was in the conspiracy, before the fact of a conspiracy existing had been fully proven. “In an action for conspiracy, it is within the discretion of the trial court to allow evidence of the declaration of one of the alleged conspirators to be given prior to proof of the conspiracy, and conditional upon the production of such proof thereafter.” Place v. Minster, 65 N. Y. 89; Miller v. Barber, 66 N. Y. 558; 1 Greenl. Ev. par. 111. “If the proof subsequently given had failed to connect S. with the fraud, it would have been the duty of the court to have instructed the jury to disregard them.” Miller v. Barber, supra. From a review of the testimony, we are satisfied that sufficient evidence was afterwards introduced to justify the court below in refusing to exclude the declarations of Russell, so far as they affect Haines and himself, from the jury. It is different in Branner’s case. Upon a review of the evidence, we find this 3tate of facts to exist: Branner came down from Oregon with Walker, and, at his suggestion, Walker stopped at Laramie to sell his horses. Walker, after talking to Haines and Russell, asked Branner about the man Faulds. Branner said that he knew nothing whatever about Faulds, but that whatever Haines and Russell said would be all right. The only further uncontradicted evidence which .would tend to inculpate Branner is that when, after the discovery of the fraud, Walker met Russell in the hotel and threatened to kill him, he, Branner, acted as peacemaker, and while so acting repaid Walker the $100 commission which Russell had received for selling the horses. There is one other bit of evidence, to the effect that he had seen Faulds pay Russell $1,000 that morning in another deal. Walker so testifies, but is squarely contradicted by Branner. Some question is made as to the competency of such statement, and we think, under the circumstances, it is not entitled to much weight. We cannot see that sufficient evidence of Branner’s connection with the conspiracy was given to justify the court in admitting Russell’s declaration in regard to Branner’s being one of the conspirators. This, we think, was manifest and reversible error, and, as to Branner, the judgment of the court below will be reversed, and a new trial will be granted him. The court is unanimous on the point that the conspiracy was not afterwards sufficiently proven, and the majority of the court find that ho is entitled to a new trial.
The thirty-first error assigned is directed to the charge of the court below to the jury. The portion objected to is as follows: “The court instructs the jury that, although the law makes the defendants in this case competent witnesses, still the ju[179] ry are the judges of the weight which ought to be attached to their testimony ; and, in considering what weight should be given it, the jury should take into consideration all the facts and circumstances surrounding tho case, as disclosed by the evidence, and give the defendants’ testimony such weight as they believe it entitled to in view of all the facts and circumstances proved in the trial; that, although defendants have a right to be sworn and give testimony in their own behalf, still their credibility, and the weight to be attached to such testimony, are matters exclusively for the jury, and their interest in the result of the trial is a matter proper to betaken into consideration by the jury in determining what weight ought to be given to their testimony.” It is conceded that the above instruction contains nothing but sound legal propositions, and theonlycomplaint made is that defendants were singled out by the court from the body of the witnesses for comment. We do not think the court erred in giving the instruction as it did. People v. Cronin, 34 Cal. 204; Gray v. State, 107 Ind.177, 8 N. E. Rep. 16; State v. Maguire, 69 Mo. 197; People v. Calvin, 60 Mich. 113, 26 N. W. Rep. 851; State v. Sanders, 76 Mo. 35.
NOTE.
To constitute the offense of obtaining money or property under false pretenses, there must be an intent to defraud; actual fraud must be committed ; false pretenses must be used for the perpetration of the fraud; and the false pretenses must be the cause which induced the owner to part with his property. People v. Jordan, (Cal.) 4 Pac. Rep. 773. To secure conviction under an indictment for obtaining goods by false pretenses, it must be shown that the defendant not only made the false representations, but that he knew that they were false. Com. v. Delvin, (Mass.) 6 N. E. Rep. 64. See, also, note, Id. 68.
To sustain the charge of obtaining money under false pretenses, it is essential to show, not only that false pretenses were made, but also that the person who parted with the money relied upon the false pretenses made, and that the money was obtained by reason thereof. State v. Metsch, (Kan.) 15 Pac. Rep. 251.
An instruction that, if certain representations were made by the accused, and were known by him to be false, and by means thereof he obtained the property, he is guilty, is error, where there is no'evidence that the person defrauded was induced to part with his property by such representations. State v. Stout, (Iowa,) 39 N. W. Rep. 275.
Pen. Code, § 532, provides that “every person who knowingly and designedly, by false or fraudulent representation or pretense, defrauds any person of money or property” is punishable. Held, that a statement by defendant that he had credit with the firm on which the draft was drawn for its amount, and that the firm would honor the draft, when he knew that he had no credit with the firm, and that the draft would not be honored or paid, was within the statute. People v. Wasservogle, (Cal.) 19 Pac. Rep. 270.
One who, at a cotton gin, claims cotton belonging to another, and has it ginned and baled with his, and delivered to him, is not guilty of obtaining goods under false pretenses, but of larceny, if of any offense. Hughen v. State, (Ark.) 11 S. W. Rep. 693.
Representations that defendant was a witch doctor and'could kill and destroy witches; that the person to whom the representations were made was the victim of witches; and that, unless he employed defendant to exorcise them, they would kill him and his family, constitute no offense, being mere expressions of opinion, and not calculated to deceive a man of common understanding. State v. Burnett, (Ind. Sup.) 21 N. E. Rep. 972.
A banker who, for the purpose of securing a deposit, falsely pretends that his bank is solvent when he has reason to believe that it is not, is guilty of obtaining money under false pretenses, though he intended to repay the money. Com. v. Schwartz, (Ky.) 18 S. W. Rep. 358.
Where defendant, as agent for her daughter, obtained property from C., which belonged to such daughter, who was entitled to its immediate possession, by falsely representing that she was the agent of another person, and neither defendant nor her daughter had any intent to defraud C., but only desired to get possession of the daughter’s property, defendant is not guilty of obtaining property by false pretenses under the Kansas statute. In re Cameron, (Kan.) 24 J?ao. Rep. 90.
A circuit clerk who issues a series of false and fraudulent witness certificates, and places them in the hands of a third person to sell, cannot be convicted of receiving money under false pretenses, where the third person acts honestly in selling them, and where no part of the money received by such third person was ever turned over to the clerk, though the purchaser relied on the clerk’s representation that the certificates were all right. Bracey v. State, (Miss.) 8 South. Rep. 165.
[179] Numerous other errors are assigned; but, upon a careful examination, it does not appear to the court that there were any material errors which would justify us in reversing the judgment of the court below.
The judgment of the court below, so far as the same affects Alanson L. Haines and William W. Russell, plaintiffs in error, is affirmed, and it is ordered that the judgment of the court below be enforced. The judgment of the court below, so far as it affects A. W. Branner, is reversed, and a new trial is hereby ordered, and the cause remanded as to him.